(w) Antonio v. Clissey, 3 Rich. 201; Blunt v. Boyd, 3 Barb. 209; Barker v. Bucklin. 2 Denio, 45; Tuttle v. Arm-stead, 53 Conn. 175; Neiswanger v. Mc-Clellan, 45 Kan. 99; Mitts v. McMorran, 85 Mich. 94, Morris v. Gaines, 82 lex. 255; Chamberlin v Ingalls, 38 la 300

(x) Wyman v. Smith, 2 Sandf. 331; Prather v Vineyard, 4 Gilman, 40.

{xx) Plummer v. Lyman, 49 Me. 229.

(xy) Brown v. George, 17 N. H. 128.

(y) Emerson v. Slater, 22 How. 28.

1 Where a written guaranty was given for the rent of a mill for a certain time, the rent to be a Axed sum payable for each number of thousands of feet of lumber sawed during the time, a subsequent agreement which might lessen, but could not increase, the period of occupation did not relieve the guarantor from liability, although his assent to the change was oral Smith v. Loomis, 74 Me. 503. - K.

on and work for the contractor, and he, the owner, will see him paid, the owner's promise is original, and not within the statute, (yy)l

If one of several persons, who are liable jointly or severally for the payment of the same debt, promises the creditor to pay the debt, this is not a case within the statute; for, although the performance of the promise will have the effect of discharging others, it is to be presumed that the thing in the contemplation of the promisor was his own discharge. Thus, in the case of a bill of exchange for which several persons are liable, if it be agreed to be taken up and paid by one, eventually others may be discharged; but the moving consideration is the discharge of the party himself, and not of the rest, though that also ensues. (z) Again, it is now well settled that the guaranty of a * factor selling upon a del credere commission, is not within the statute. This may be referred to the same principle. Although such a contract "may terminate in a liability to pay the debt of another, that is not the immediate object for which the consideration is given,"(a)

It may be further stated that this clause of the statute does not embrace cases in which the liability to pay the debt of another arises, by operation of law, out of some transaction between the parties, without the aid of any special promise. Thus, if A, who is indebted to B, sends money to C to pay the debt, and C accepts the trust, he thereby becomes liable to B for the debt of A. (b) So if property is delivered to B, clothed with a trust for the payment of the debt of C, and B consents to receive the property subject to the trust, he thereby becomes liable to pay the debt, (c) But in cases falling within this principle, it is obvious that the

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(yy) Warnick v. Grosshobz, S Grant, 234. But see Brown v. Weber, 38 N. Y. 187.

(z) Per Lord Ellenborough, in Castling v. Aubert, 2 East, 325. And see Files v. McLeod, 14 Ala. 611. And see supra, note (r).

(a) Per Parke, B., in Coutourier v. Hastie, 8 Exch. 40, 16 Eng. L. & Eq. 562. It was declared by the court of Exchequer, in this case, that such a contract is not within the statute. Such may now, therefore, be considered as the settled doctrine in the English and American law. See ante, vol. l. p. *92, n. (d), and vol. ii.

P. *12, n. (a). See Malory v. Gillett, 21 N. Y. (7 Smith) 412, for a classification of cases not within the statute, by Corn-stock, C. J.

(b) Wyman v. Smith, 2 Sandf. 331. And see Stocking v. Sage, 1 Conn. 519.

1 Where the owner of a building in order to secure its completion promises to pay for necessary labor or materials, it will if possible be held an original promise, and not within the statute. Clifford v. Luhring, 69 111. 401; Walker v. Hill, 119 Mass. 249; Crawford ?'. Edison, 45 Ohio St. 239; Merriman v. McManus, 102 Pa. 102; Kel ley v. Schupp, 60 Wis. 76. But if the original contractor is clearly intended to remain primarily liable, the promise is within the statute. Gill v. Herrick, 111 Mass. 501; studley v. Barth, 54 Mich. 6; Morrisey v. Kinsey, 16 Neb. 17; Birchell v. Neaster, 36 Ohio St. 331; Haverley v. Mercur, 78 Pa. 257; Noyes v. Humphreys, 11 Gratt. 636.

(c) Drakeley v. Deforest, 3 Conn. 272. This was one of the grounds upon which Williams v. Leper, 3 Burr. 1886, was decided. For the facts of the case see supra, n. (u). The plaintiff had a lien upon the goods of his debtor for the payment of his debt; and the defendant, in consideration that the plaintiff would relinquish the goods to him, consented to receive them subject to the lien. Lord Mansfield, in delivering his opinion, said: "This case has nothing to do with the statute of frauds The res gestae would entitle the plaintiff to his action against the defendant. The landlord had a legal pledge. He enters to distrain; he has the pledge in his custody. The defendant agrees that the goods shall be sold, and the plaintiff paid, in the first place. The goods are the fund. The question is not between Taylor and the plaintiff. The plaintiff had a lien upon the goods. Leper was a trustee for all the creditors; and was obliged to pay the landlord, who had the prior lien. This has nothing to do with the statute of frauds." And Wilmot, J., said: " Leper became the bailiff of the landlord; and when he had sold the goods, the money was the landlord's (as far as £45) in his own bailiff's hands. Therefore an action would have lain against Leper for money had and received for the plaintiffs use." The principle was stated still more pointedly by Aston, J., who concurred with the rest of the court upon this ground alone. He said: " I look upon the goods here to be the debtor; and I think that Leper was not bound to pay the landlord more than the goods sold for, in case they had not sold for £45. The goods were a fund between both; and on that foot I concur." The ease of Castling v. Aubert, 2 East, 325, proceeded upon the same ground. There the plaintiff held certain policies of insurance, which he had effected, as an insurance broker, for the use of one Grayson, and upon the faith of which he had accepted bills for Grayson's accommodation. A loss haying* happened on the policies in question, and the defendant, who was Grayson's agent, wishing to obtain possession of the policies, in order to receive the amount of the loss from the underwriters, promised, in consideration that the plaintiff would deliver to him the policies, to provide funds for the payment of the plaintiff's acceptances. The policies were accordingly delivered to the defendant, who received from the underwriters more than sufficient to cover the plaintiff's acceptances. Upon these facts the court held the defendant liable. And Le Blanc, J., said: "This is a case where one man having a fund in his hands which was adequate to the discharge of certain incumbrances, another party undertook that, if that fund were delivered up to him, he would take it with the incumbrances; this, therefore, has no relation to the statute of frauds." It would seem that some of the judges held the defendant liable also upon his special promise, upon the other principle established by Williams v. Leper, namely, that the main purpose and object of the defendant in making the promise, was not to pay the debt of Grayson, but to subserve a purpose of his own, namely, to Set possession of the policies. See supra. But if the facts are correctly reported, it would seem difficult to sustain the decision upon this ground. For it appears that the defendant was acting as Grayson's agent, and that he received the policies on Grayson's account, and for his benefit. The consideration of the promise, therefore, enured entirely to the benefit of Grayson; and the case, in this view, would seem to come within the decision in Nelson v. Boynton, 3 Met. 396, where it was held, that a promise to pay the note of a third person, which was in suit and secured by an attachment of his property, in consideration of the holder's discontinuing the suit and relinquishing his attachment, was within the statute. It is to be observed, however, that some of the language attributed to Lord Ellen-borough would seem to indicate that the defendant's name was on bills accepted by the plaintiff, and that his object, therefore, in undertaking to provide funds for their payment, was his own discharge. Thus, his lordship said that the defendant, in making the promise, "had not the discharge of Grayson principally in his contemplation, but the discharge of himself. That was his moving consideration, though the discharge of Grayson would eventually follow." If we may infer from this that the defendant was liable on the bills, the case is relieved from all difficulty. See supra, p. *24, n. (t). See in further illustration of the principle stated in the text, Edwards v. Kelly, 6 M. & S. 204. There, the plaintiff, for rent-arrear, haying distrained goods which the tenant was about to sell, agreed with the defendants to deliver up the goods, and to permit them to be sold by one of the defendants for the tenparty accepting the trust can be made liable only to the extent of the value of the property * received, and for debts, with the payment of which the property is charged, (d) Where the debt to pay which the promise is made is not legally due, and cannot be enforced, it seems that the promise is not to pay the debt of another, (dd)